(a) In addition to the investigation procedures set forth in
Sec. 24.4, this section sets forth special procedures applicable only
to investigations under the Energy Reorganization Act.
(b)(1) A complaint of alleged violation shall be dismissed unless
the complainant has made a prima facie showing that protected behavior
or conduct as provided in Sec. 24.2(b) was a contributing factor in the
unfavorable personnel action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to meet
the required elements of a prima facie case, as follows:
(i) The employee engaged in a protected activity or conduct, as set
forth in Sec. 24.2;
(ii) The respondent knew that the employee engaged in the protected
activity;
(iii) The employee has suffered an unfavorable personnel action;
and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was likely a contributing factor in the
unfavorable action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required elements of a prima facie
case, i.e., to give rise to an inference that the respondent knew that
the employee engaged in protected activity, and that the protected
activity was likely a reason for the personnel action. Normally the
burden is satisfied, for example, if it is shown that the adverse
personnel action took place shortly after the protected activity,
giving rise to the inference that it was a factor in the adverse
action. If these elements are not substantiated in the investigation,
the investigation will cease.
(c)(1) Notwithstanding a finding that a complainant has made a
prima facie showing required by this section with respect to complaints
filed under the Energy Reorganization Act, an investigation of the
complainant's complaint under that Act shall be discontinued if the
respondent demonstrates by clear and convincing evidence that it would
have taken the same unfavorable personnel action in the absence of the
complainant's protected behavior or conduct.
(2) Upon receipt of a complaint under the Energy Reorganization
Act, the respondent shall be provided with a copy of the complaint (as
supplemented by interviews of the complainant, if any) and advised that
any evidence it may wish to submit to rebut the allegations in the
complaint must be received within five business days from receipt of
notification of the complaint. If the respondent fails to make a timely
response or if the response does not demonstrate by clear and
convincing evidence that the unfavorable action would have occurred
absent the protected conduct, the investigation shall proceed. The
investigation shall proceed whenever it is necessary or appropriate to
confirm or verify the information provided by respondent.
(d) Whenever the Assistant Secretary dismisses a complaint pursuant
to this section without completion of an investigation, the Assistant
Secretary shall give notice of the dismissal, which shall contain a
statement of reasons therefor, by certified mail to the complainant,
the respondent, and their representatives. At the same time the
Assistant Secretary shall file with the Chief Administrative Law Judge,
U.S. Department of Labor, a copy of the complaint and a copy of the
notice of dismissal. The notice of dismissal shall constitute a notice
of determination within the meaning of Sec. 24.4(d), and any request
for a hearing shall be filed and served in accordance with the
provisions of Sec. 24.4(d) (2) and (3).
